Legalized Recreational Cannabis and the Workplace
DuPage County business leaders gathered on Wednesday, February 26 at a breakfast hosted by Choose DuPage and DuPage County Board Chairman, Dan Cronin to discuss the Illinois Cannabis Regulation & Tax Act, and how it affects the workplace.
The discussion was led by Mark McAndrew and Therese King Nohos of Rathje Woodward LLC. Attendees included a diverse range of leaders with a broad spectrum of interests and concerns including representatives from healthcare, labor, government, higher education, major employers, and more. Attendees included:
- American Academy of Pediatrics
- Ball Horticultural
- Calamos Investments
- Chicago Zoological Society/Brookfield Zoo
- Christopher B. Burke Engineering
- Construction Industry Service Corporation (CISCO)
- College of DuPage
- Crowe LLP
- Dugan & Lopatka
- Edward-Elmhurst Health
- HBK Engineering
- IBEW Local 701
- PowerForward DuPage
- Village of Addison
- Village of Lombard
- Wheaton College
- Wynndalco Enterprises
After a welcome from Chairman Cronin, McAndrew began the discussion by saying “we want you to walk out of here with a concept on how to re-balance the workplace given the new reality of recreational marijuana in the State of Illinois.”
Statistics to Highlight
- Roughly half the states have legalized or decriminalized marijuana.
- There are 17 adult-use (recreational) cannabis dispensary regions in Illinois. DuPage is part of the Chicago-Naperville-Elgin region, which has the largest number of maximum conditional licenses allowed at 47.
- In January, sales from recreational marijuana were almost $40 million, generating $10 million in tax revenue. Of that, $3.1 million went to the State of Illinois’ General Fund and local governments.
McAndrew went on to highlight some challenges related to the Illinois Cannabis Regulation & Tax Act:
- Employer was never defined in the bill.For companies with employees in different states, how do you treat your employees with a patchwork of laws? This becomes difficult.
- Employee was never defined in the bill. Does it apply to independent contractors? Trends show that independent contractors are treated as employees in these instances, but it was never defined in the bill.
- Discipline was never defined in the bill. Is it verbal, suspension, termination?
The law focuses on impairment at work, while current drug testing methods focus on use. Until impairment is quantified and can be tested in the field it remains largely subjective. It is recommended that employers have someone trained and designated to determine impairment. There are also tools available (such as checklists) to help document behavior.
McAndrew explained that the law does permit employers to: enforce drug testing policies in a nondiscriminatory manner, enforce a drug-free “Workplace” (including a Zero-Tolerance policy), prohibit employees from using, possessing, or being impaired while working or “On Call”, and discipline or terminate employees who violate policies. Additionally, a Workplace includes not only the building, but the entire property and parking area under control of the employer or area used by an employee while in performance of their job or duties, including vehicles.
The law provides that an employer may discipline and terminate any employee under the following condition: “good faith belief” if “employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance.”
During the application and interview phases, the law places strict limits on employers when it comes to asking job applicants to answer medical questions, take a medical exam, or identify a disability (including whether they have a valid prescription). After a job is offered to an applicant, the law allows an employer to condition the job offer on the applicant answering certain medical questions or successfully passing a medical exam, but only if all new employees in the same type of job have to answer the same questions or take the same exam. The law also allows for testing for “Safety Sensitive” positions. Here, the employer must demonstrate that impaired ability to perform a job will be a direct safety threat to the employee or others in the Workplace.
Most employers in the room agreed that being trained to understand and recognize impairment versus a bad night’s sleep, low blood sugar, or any number of causes that could result in symptoms, is their biggest challenge.
Monique Hakkert, Human Resources Manager, Learning & Development for Ball Horticultural said, “Our policy is to focus on performance. Get to know your employee and set tangible deadlines and goals. This takes it out of the impairment conversation for positions that are not Safety Sensitive. If you are not sure of impairment, it’s much easier to focus on performance.”
Nohos then discussed the particular challenges facing federal contractors, including Illinois colleges and universities who participate in federal financial aid programs. She noted that, while marijuana is now legal under Illinois state law, it remains illegal under federal law. This conflict creates a difficult tension for federal contractors to navigate. This tension is very real for colleges and universities that have agreed to comply with the Drug Free Schools and Community Act as a condition to eligibility for aid. Nohos encouraged all federal contractors to review and comply with their contractual promises with the federal government regardless of changes in state law.
Nohos predicted that higher education institutions should expect some confusion from students who may not understand why they are not able to use marijuana on campus. Nohos also noted that Illinois students have been able to use medical marijuana on primary and secondary school grounds since August 2018 under Ashley’s Law. She predicted that these students in particular may be confused about why they cannot use a substance on a college campus that they could use on their high school campus. Nohos encouraged institutions to proactively train their student affairs professionals and educate their student populations about these complex issues.
Best Employment Practices
- Use a Reasonable Suspicion Checklist to determine impairment, particularly if related to a Safety Sensitive position.
- Follow drug-testing procedures and test only as necessary.
- Allow employee a reasonable opportunity to contest impairment determination.
- Be aware of ADA/Disability and FMLA implications.
- Train employees responsible for assessing impairments.
- Considering updating policy with respect to identifying poor performance, safety risks/issues and/or attendance issues.
- Be familiar with Illinois cannabis and privacy laws.
- Adhere to Collective Bargaining Obligations, if any.
- Do not discriminate.